Since You Asked: Here's What We Told the FCC To Do About Net Neutrality

Back in January, we shared the crummy news that a federal appeals court had overturned the FCC’s Open Internet Order, which established basic rules of the road for ISPs (Internet Service Providers). The upshot is that net neutrality—so important to preserving a level playing field online for musicians and everyone else—is once again in jeopardy.

Then in February, we shared the more encouraging news that incoming FCC Chairman Tom Wheeler was now fully determined to do something about it, having just received a million signatures in support of an open, accessible Internet. As the new head of the independent government agency tasked with regulating communications technologies, Wheeler announced an action plan and asked for feedback.

You won’t be surprised to learn that we had a lot to say!

Our feedback came in the form of an official filing in the FCC’s “remand docket,” which is a fancypants term for a large collection of public comments to be considered as the FCC figures how to better articulate its authority. You can read the full text of our filing here, but below we’ve pulled out some highlights.

We’ve talked about the importance of net neutrality for musicians and indie labels for years now, as SPIN Magazine recently highlighted, but it’s always worth reiterating how the loss of an open Internet would impact artists. It’s not a pretty picture:

Artists may find themselves locked into potentially disadvantageous economic structures due to ISPs favoring sites and services with entirely different business interests than those of creators; innovators with artist-friendly platforms may never get off the ground due to bandwith restrictions or economic barriers to entry.

Whatever the FCC does next, we want it to be durable enough to stand up in court and forceful enough to provide sufficiently broad protection. We think the clearest path to do this is pretty straightforward: it’s called reclassification. Years ago, the FCC made the decision to classify broadband carriers as “information services” rather than “telecommunications services,” which is how they’d been previously treated in the days of dial-up Internet. Specifically, reclassification means once again placing Internet providers under a part of the Telecommunications Act known as Title II. The phone lines still fall under those very rules. It’s why when you order a pizza from an local joint, an operator doesn’t come on and say, “please hold while we prioritize calls to Dominos.” Reclassification simply means reversing a flawed decision from more than a decade ago and explaning why.

Since January’s court ruling, we’ve noted that reclassification is the cleanest solution in terms of the FCC’s authority. Chairman Wheeler is on record saying reclassification is on the table, but he’s also suggested that the FCC might be able to use a different legal rationale, as part of its mandate to “promote broadband deployment” under Section 706. Our take on this:

[…].it seems clear that the most legally sound means through which to promulgate net neutrality rules would be under a Title II framework. Whether Section 706 provides such certainty is an open question, and we look forward to the Commission’s rationale for this approach should it decide to move in that direction. In the meantime, we applaud Chairman Wheeler’s decision to leave reclassification on the table.

At the same time, we also emphasize that waiting for Congress to act probably won’t work. Legislation to restore net neutrality have been introduced in both chambers, and it may ultimately be necessary for Congress to clarify what the FCC can and can’t do. However, we argue that progress on that front is dangerously slow, and we can’t afford to twiddle our thumbs:

Waiting for Congress to act would give ISPs have tremendous leeway to shape the future of both wireline and wireless Internet service to first and foremost serve their agenda—one which may not be in line with the public interest or that of a competitive marketplace.

And we’re not talking about a distant dystopian future. We’re talking about developments that are happening right now. As we mention in our comments: